32 ELR 10681 | Environmental Law Reporter | copyright © 2002 | All rights reserved

International Assistance, Sustainable Development, and the War on Terrorism

Royal C. Gardner

[Editors' Note: In June 1992, at the United National Conference on Environment and Development (UNCED) in Rio de Janeiro, the nations of the world formally endorsed the concept of sustainable development and agreed to a plan of action for achieving it. One of those nations was the United States. In August 2002, at the World Summit on Sustainable Development, these nations will gather in Johannesburg to review progress in the 10-year period since UNCED and to identify steps that need to be taken next. In anticipation of the Rio + 10 summit conference, Prof. John C. Dernbach is editing a book that assesses progress that the United States has made on sustainable development in the past 10 years and recommends next steps. The book, which is scheduled to be published by the Environmental Law Institute in June 2002, is comprised of chapters on various subjects by experts from around the country. This Article will appear as a chapter in that book. Further information on the book will be available at www.eli.org or by calling 1-800-433-5120 or 202-939-3844.]

Royal Gardner is a Professor of Law and the Director of the Graduate and International Programs at Stetson University College of Law in St. Petersburg, Florida. He thanks Magaly Arias and Pamela D. Burdett for their research assistance. Comments on this Article may be sent to gardner@law.stetson.edu.

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There can be no greater error than to expect, or calculate upon, real favors from nation to nation.1

As the United States embarks on a war against terrorism, it is instructive to recall George Washington's 1796 farewell address warning. Nations will act only in their perceived self-interests. Assistance from other countries comes with a cost. Note, for example, the U.S. restructuring of Pakistan's $ 379 million bilateral debt to reward its cooperation in the fight against the Taliban and the al Qaeda terrorist network.2

U.S. international assistance, like that of other countries, typically promotes strategic and national security objectives. Thus, with the end of the cold war, it was not surprising to see U.S. international assistance decline. With the beginning of a war on terrorism, we can expect to see a rise in foreign assistance.

In the context of this Article, the relevant question is: to what extent will this aid promote sustainable development? In the current climate, sustainable development will largely be a secondary objective of U.S. foreign aid activities. The primary objective will be to assist countries in combating terrorism or to reward them for their cooperation. Yet aid linked to anti-terrorism efforts does contribute to sustainable development, and sustainable development aid—if it is effective—may also contribute to reducing some terrorist threats. Anti-terrorist assistance and sustainable development assistance can be mutually reinforcing.

Peace and security are prerequisites for sustainable development. Without peace and security, it is unlikely that progress will be made with respect to environmentally responsible economic and social development. A nation at war—with another nation, with itself, or with terrorists—will be more concerned about short-term survival, not long-term sustainable development.3 Accordingly, U.S. assistance in fighting terrorism should be viewed as a necessary element of promoting sustainable development.

How, then, does sustainable development aid assist with combating terrorism? A principle component of sustainable development is economic progress. A young man in the developing world may be less likely to turn to war and terrorism if economic opportunities are available. Of course, we must not view sustainable development as a cure-all. Nevertheless, while economic development in the developing world will not inoculate the United States (or others) from terrorism, improved economic conditions may reduce the pool of the disillusioned and disaffected from which terrorist campaigns have frequently drawn.

With these points in mind, this Article discusses the relationship between international assistance (and in particular official development assistance (ODA)) and sustainable development. While ODA can contribute to sustainable development, it is neither a precise nor complete measurement of a country's support of sustainable development abroad. The Article will then review why the United States ought to provide international assistance for sustainable development. While there may be legal and humanitarian justifications, the most compelling reason for the United States to do so is because it is in its self-interest. Next, the Article examines the level of U.S. ODA, prior to the 1992 United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro and post-Rio, and compares U.S. actions with those of other nations. Although the United States continues to be among the most generous of nations in terms of total ODA, U.S. ODA has declined significantly since 1992. Average annual ODA disbursements from 1990-1992 (set at 1999 prices) was approximately $ 12.38 billion; from 1998-2000, U.S. disbursements averaged approximately $ 9.27 billion, slightly more than a 25% drop in real dollars.4 Finally, the Article concludes with recommendations for the [32 ELR 10682] United States and for the World Summit on Sustainable Development in Johannesburg.

The guiding polestar of U.S. international assistance should be whether the aid is effective in furthering its strategic goals.5 To the extent that assistance is given as a reward for cooperation in the war against terrorism, it is a straightforward inquiry: the assistance is "effective" so long as the recipient nation provides the requested anti-terrorism support, whether that be granting permission to host U.S. troops, sharing intelligence information, or arresting suspected terrorists. Thus, the restructuring of Pakistan's bilateral debt is effective foreign aid if Pakistan continues to support U.S. anti-terrorist efforts. The extent to which the debt restructuring assists Pakistan with achieving sustainable development would be a subsidiary benefit. But there should be no doubt: in wartime, the primary measurement of the effectiveness of such assistance must be whether the recipient nation is appropriately assisting in the war effort.

The calculus is slightly different with respect to aid more directly linked to sustainable development. In order for this assistance to contribute to reducing terrorist threats, it must be effective in the sense that it actually improves the economic and social conditions of people in the developing world. If the assistance does not do so, it is a double failure, because it not only fails to help intended beneficiaries, but weak economic conditions, weak social conditions, and environmental degradation can create risks to world security.6 Furthermore, it is important to keep in mind that long-term environmental threats to the United States will still exist when the war on terrorism subsides or concludes—whether that effort takes 1, 10, or 50 years. Sustainable development assistance can help promote U.S. strategic goals beyond fighting terrorism, a consideration that should be taken into account when evaluating the effectiveness of such aid.

The World Summit on Sustainable Development in Johannesburg must recognize the obvious point that terrorism is inherently destructive of sustainable development.7 Clearly, terrorist attacks directly undermine a nation's peace and security and its economic and social development. Such attacks, however, also disrupt sustainable development indirectly. As a consequence of terrorist attacks, governments will necessarily divert funds from development and aid programs to military and security operations.

The hard reality is that the Johannesburg conferees will be unsuccessful if they base an appeal for additional ODA on the developed world's moral responsibility or on the developing world's sense of entitlement. Rather than focusing primarily on input, the conferees may do better by emphasizing the output end of the aid equation: how are the recipient nations using the aid? Is assistance for sustainable development resulting in tangible benefits for the recipient nation? Is infant mortality decreasing? Are literacy rates rising? Is the loss of biological resources slowing? By fostering economic and social development, by halting environmental degradation, this assistance may reduce the risk of domestic instability in developing countries. If so, then providing aid that effectively promotes sustainable development is also in the self-interest of the United States.

The Relationship of ODA With Sustainable Development

In the Article Sustainable Development: Now More Than Ever,8 John Dernbach explained that sustainable development requires peace and security, economic development, social development, and national governance that encourages peace and development. He also noted that the developed world agreed to help foster sustainable development internationally. It is difficult, however, to measure precisely how the United States and other countries have contributed to sustainable development abroad.

One method of measurement is ODA. ODA consists of financial resources flowing to developing countries and multilateral institutions.9 A transaction is considered ODA if: (1) the primary objective is to promote the economic development and welfare of developing countries, and (2) it is concessional in nature, with a grant element of at least 25%.10 The Development Assistance Committee (DAC) of the Organization for Economic Cooperation and Development (OECD) tracks and reports annually on the level of ODA disbursements.11 While ODA can be a critically important component of sustainable development in developing countries, it should not be the sole method of measuring a developed country's support of sustainable development abroad for a number of reasons.

First, we must recognize that money spent on ODA does not necessarily translate into sustainable projects. Indeed, history is rife with examples of cases in which ODA has been used to implement environmentally harmful activities.12 In addition, sometimes the assistance projects are not implemented because of corruption.13 Thus, when trying to gauge the effect of ODA the question should not only be how much money has been disbursed, but also, and more [32 ELR 10683] important, for what activities or purposes has the money been used?14

Second, ODA does not capture all of U.S. (and other countries') contributions to supporting sustainable development abroad. As noted above, sustainable development requires peace and security.15 The provision of international peacekeeping forces that stabilizes an area makes sustainable development a possibility. The incremental costs of U.S. peacekeeping efforts, however, are not factored into its ODA totals.16 Education is also a prerequisite for sustainable development, and public and private schools and universities offer millions of dollars annually in scholarships and financial assistance to students from developing countries. The educational subsidies from public institutions qualify to be counted as ODA, but the U.S. government does not collect such data for inclusion in its ODA totals.

Furthermore, focusing exclusively on ODA obscures what Alan Miller of the Global Environment Facility (GEF) describes as what "may be among the most important economic developments of the [20th] century."17 While ODA levels have stagnated or declined, private resource flows such as direct foreign investment have dramatically increased.18 In the 1960s and 1970s, total resource flows (official and private flows) from the United States to developing countries was 0.7% of the U.S. gross national product (GNP).19 From 1990-1997, total resource flows remained at 0.7% GNP; however, the composition of those flows had shifted.20 In the 1960s, official flows accounted for more than 70% of total resource flows.21 The 1990s presented almost a mirror image as private flows accounted for approximately 90%.22 Today it is clear that private investment, by virtue of its volume, can play a more significant role in the quest for sustainable development.23

Nevertheless, just as ODA funds do not necessarily translate into sustainable development, neither do private flows. Private flows alone are no guarantee of development, let alone sustainable development.24 Moreover, private investment tends to focus on the economic conditions in a country: are the conditions conducive to a reasonable return on the investment?25 Accordingly, private investment is concentrated in several countries; it is not spread evenly around the globe.26 Additionally, private investment primarily helps drive economic development, rather than the other goals of sustainable development (peace and security, social development, and stable, supportive government). While private investment may contribute to achieving these other goals—economic development may enhance a nation's security and spur health and educational opportunities—promoting these goals is not the major motivation behind private investment. Making money is the main point of private investment. Yet private investment is discouraged if a country is not at peace or if the government does not support property rights and the rule of law.

The latter are areas where ODA (and other non-ODA assistance) may make significant contributions. Official flows, not private flows, are targeted to support peace and security, to alleviate health and environmental crises, to encourage educational improvements, and to reward countries that move toward democracy and the rule of law. In this way, ODA can help provide the infrastructure that will attract private investment or at least make private investment more likely. Increased private investment can in turn help create more stable societies.

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Why Should the United States Provide Sustainable Development Assistance?

There are several overlapping arguments why the United States should promote sustainable development abroad. Some commentators suggest that the United States has a legal or moral obligation to do so. Others offer a humanitarian justification. In the end, however, the most compelling reason to give sustainable development assistance is that (if it is effective) it is in the U.S. self-interest.

The "Legal" Obligation

Agenda 21 of the UNCED sets forth an ambitious framework for the world community to develop in an environmentally sustainable manner.27 In separate chapters, it addresses a host of issues, ranging from alleviating poverty and reducing consumption habits to protecting the environment and strengthening public participation in development decisions, to name but a few. Of course, implementing Agenda 21's recommendations requires financial resources. Each chapter of Agenda 21 concludes by identifying the financial resources that will be needed to achieve the specified objectives. In total, it was estimated that the average annual cost of implementing Agenda 21 in developing countries would be over $ 600 billion for the time period of 1993-2000.28 Chapter 33 of Agenda 21 calls on developed countries to provide "new and additional financial resources" to developing countries to address environmental and developmental concerns,29 specifically $ 125 billion in annual assistance.30

One of the clearest, most objective provisions of Chapter 33 is the reaffirmation of developed countries to commit to provide 0.7% of their GNP to ODA.31 Specifically, the document states that:

developed countries reaffirm their commitments to reach the accepted United Nations target of 0.7 percent of GNP for ODA and, to the extent that they have not yet achieved that target, agree to augment their aid programmes in order to reach that target as soon as possible . . . . Some countries agree or have agreed to reach the target by the year 2000. . . . Those countries which have already reached the target are to be commended and encouraged to continue to contribute to the common effort to make available the substantial additional resources that have to be mobilized. Other developed countries, in line with their support for reform efforts in developing countries, agree to make their best efforts to increase their level of ODA.32

It is important to note, however, that the United States expressly declined to assume this obligation.33 Thus, when examining the level of ODA provided by the United States, one should bear in mind that the United States has not acted contrary to its (soft) international legal obligations, at least those contained in Agenda 21.

Still, Chapter 33's call for increased ODA is consistent with several principles enshrined in the Rio Declaration,34 which the United States has accepted. To be sure, the Rio Declaration does not expressly demand increased assistance from developed countries; however, a fair reading of Principles 5 through 7 of the Rio Declaration easily makes that point.35 Principle 5 speaks generally about the need for international cooperation to eradicate poverty, while Principle 6 notes the "special situation and needs of developing countries, particularly the least developed and most environmentally vulnerable," which are to receive "special priority." Principle 7 then makes clear who is to make this matter a special priority by articulating the concept of common but [32 ELR 10685] differentiated responsibilities. It emphasizes the responsibility that developed countries bear in light of their contributions to global environmental degradation and the "financial resources they command." Part of the developed world's responsibility therefore includes assisting developing countries, especially when these countries are asked to respond to environmental threats that are largely not of their own making.

Indeed, to draw an analogy to U.S. domestic law, the imposition of environmental obligations on developing countries that are unaccompanied by financial resources necessary for implementation may be tantamount to an unfunded mandate.36 In the United States, an unfunded mandate occurs when the federal government requires state or local governments to bear the costs of implementing a federal program. Such mandates may interfere with the decisionmaking processes of local units of government, but they also shield the federal government from accountability. It is the state or local official who "will bear the brunt of the public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision."37

Similarly, a developing country that seeks to protect the environment, in accordance with international dictates, may bear the brunt of local, public disapproval, especially if the measures are viewed as impeding development. Why should a developing country accede to the international community's demand that it refrain from certain actions, e.g., harvesting old growth forests, using ozone-depleting substances, that the developed world has engaged in and benefitted from? The answer, of course, is because such a course of action is in the long-term interest of all, including the developing country. The point of the principle of common but differentiated responsibilities, however, is that it would be inequitable to require a developing country to implement such measures without some financial assistance. In this way, the provision of assistance by developed countries removes the specter of an unfunded mandate and makes developed countries accountable for past environmental wrongs.38

The Humanitarian Justification

Another reason for providing sustainable development aid is humanitarian in nature: the United States should assist less fortunate people because it is the right thing to do.39 Indeed, the United States has had a long history of providing disaster relief, even to its adversaries. The United States provides this assistance ostensibly without reference to larger strategic goals; rather, the objective is merely to reduce human suffering and misery.

Yet even in humanitarian efforts there is often a strategic component. U.S. food drops in Afghanistan are a clear example of how humanitarian assistance furthers strategic objectives. First, such assistance conveys the important message that the United States is at war against the Taliban and al Qaeda, not Muslims in general. Second, the food drops may prevent a widespread famine as refugees flee the battle areas; news reports and pictures of starving Afghan children would probably interfere with U.S. ability to maintain alliances and international support for its military action. Accordingly, there are times when the provision of charity is in U.S. self-interest.

The Strategic Rationale

International assistance has long been used to promote U.S. national security interests. Indeed, "during the Cold War, the main purpose of aid was to support strategically important regimes regardless of whether the recipient government was following effective development policies or used aid resources efficiently."40 This statement also no doubt will be true during the war on terrorism, especially for assistance that is provided as a reward for cooperation or help in combating terrorism. Yet if sustainable development aid is used effectively (whether or not it is given primarily as a reward), it can play a role, albeit limited, in supporting U.S. security interests.

It is consistent with the national security interests of the United States to provide sustainable development assistance to prevent the disintegration of states. While we have typically focused on arrangements that integrate countries—such as the European Union and the World Trade Organization—we need to be cognizant of opposite trends.41 When economic conditions are abysmal, when racial and ethnic prejudices are inflamed, when acquired immune deficiency syndrome (AIDS) ravages a society, the survival of a state is at risk. Obviously, the breakdown of order in a state results in grave consequences for its people. But in today's interconnected world, the breakdown of order in one state affects the rest, including the United States, and may present immigration, health, environmental, and military challenges. Accordingly, assistance that improves living conditions (or prevents further deterioration) and that encourages a country to move toward the rule of law is in the national interest of the United States.

If a country is moving toward sustainable development, if it is making economic progress, it is less likely that its people will turn to violence—violence against the country's [32 ELR 10686] government and violence against the United States. If, however, a young man sees no hope and has no economic opportunities, he may be more inclined to answer the call of the terrorist.42 Although this view is perhaps simplistic, it is true: A person with an economic stake in society is not a likely terrorist candidate.

Of course, this does not suggest that sustainable development aid is the linchpin for the war on terrorism. Nor does it suggests that all terrorists are uneducated. Some of the terrorists who participated in the September 11 attacks had university degrees and economic opportunities. Economic and social development, or anything else that sustainable development might promise, will not influence such actors.

Nonetheless, over the long term, sustainable development assistance can make at least a small contribution to reducing the pool of potential terrorists. This benefit will only be realized, however, if the aid is effective at achieving its goals.43 The U.S. Agency for International Development (USAID), which administers much of the U.S. overseas sustainable development programs, has taken a positive step by adopting a policy of "managing for results."44 "Managing for results" requires USAID to articulate broad goals for implementing organizations that receive assistance funds; these organizations are accountable for meeting the goals. The results of USAID's performance reviews are then considered when making future allocation decisions. USAID's objective is to reengineer "how it plans, delivers, and judges development assistance to make the greatest possible difference in the lives of poor people in the developing world and to demonstrate to Congress and the American public that their tax dollars are being well spent."45

USAID's "managing for results" is not without its critics. The Reality of Aid Project contends that USAID officers now micromanage implementing organizations, that the implementing organizations "spend an inordinate amount of time gathering data and preparing documents," and that the success or failure indicators "have a weak causal relationship to aid expenditures."46 While USAID will continue to refine its process, it must be emphasized that "performance matters."47 It matters for the intended recipients of the aid, and it matters to the United States—not just because it has an interest in how its funds are spent, but because effective assistance can contribute to strategic objectives.

U.S. ODA: Pre- and Post-Rio

Notwithstanding any legal, humanitarian, or strategic rationale, U.S. ODA has declined significantly since the Rio Conference. This section first reviews U.S. ODA in the 1990s and compares it to levels of ODA provided by other developed countries. It then examines U.S. contributions to two multilateral environmental funds. With respect to the Montreal Protocol Multilateral Fund, the United States has assumed a leadership role and has satisfied its financial obligations. That is not the case, however, with the GEF. While there are many reasons for the United States to remain engaged in multilateral environmental institutions, a paramount reason, once again, is that it is in U.S. self-interest. The United States must continue to provide international leadership and meet its international obligations, especially when it will be relying on other nations in the war on terrorism.

Overview of ODA Disbursements

As Figures 1 and 2 indicate, the United States is spending less on ODA. In the three years leading up to the Rio Conference (1990-1992), the United States expended an average of $ 11.455 billion each year. Since Rio (1993-2000), without adjusting for inflation, the average annual amount of money the United States spends on ODA declined to $ 8.776 billion.48 Indeed, when examining ODA levels at 1999 prices, the decrease in average annual ODA from 1990-1992 to 1998-2000 is $ 3.103 billion, slightly more than a 25% reduction.49

Figure 1

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Figure 2

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Nevertheless, as Figure 3 demonstrates, the United States still provides more ODA than almost any other country. For the three years prior to the Rio Conference, the United States held the number one position; since then, Japan has been the most generous country in terms of total ODA.50 It is important to note, however, that the developed countries have not fulfilled the commitments contained in Chapter 33 regarding new, additional financial resources. Rather than increasing ODA, several countries have decreased ODA since Rio, most notably the four largest donors, France, Germany, Japan, and the United States.51

Figure 3

[SEE ILLUSTRATION IN ORIGINAL]

Another method of measurement is ODA as a percentage of GNP or gross national income (GNI).52 Figure 4 notes the steady decline of U.S. ODA as a percentage of its GNI, from a .22% average in 1984-1988 to .10% in 1998-2000. Figure 5 compares the U.S. performance with those of other developed countries. By this method of measurement, the United States ranks last for all OECD countries.

Figure 4

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Figure 5

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There are several explanations for the decline in U.S. ODA. Most notably, with the end of the cold war, political support for international assistance waned.53 The strategic purpose of the aid seemed unclear. Furthermore, in the early and mid-1990s, the federal government was concerned about reducing the federal deficit. The shutdown of the federal government and the budget battles in 1995 caused some expenditures, including ODA, to be deferred until 1996.54 In addition, in 1996 and 1997, 13 countries were reclassified from Part I status (developing countries) to Part II status (countries in economic transition), including Israel, many eastern European countries, and several newly independent states arising from the former Soviet Union.55 Only assistance to Part I countries counts toward ODA calculations. Assistance to Part II countries is considered official assistance (OA),56 so long as it would otherwise qualify as ODA. Thus, U.S. contributions to Israel, Poland, Russia, and other Part II countries are not credited toward its ODA levels.57

When combining ODA and OA, the United States has provided nearly as much international assistance as Japan.58 Indeed, from 1996-1998, the United States contributed more than Japan. In 1999, in response to the Asian financial crisis, Japan significantly increased its ODA, and U.S. OA did not close the gap. From 1996-2000, the annual averages of combined ODA and OA flows from the two countries are almost equivalent: $ 11.54 billion from the United States and $ 11.9 billion from Japan.

Figure 6

[SEE ILLUSTRATION IN ORIGINAL]

Furthermore, the U.S. figures do not include the cost of all its peacekeeping operations. The reporting requirements for ODA (and OA) only allow the incrementalcost associated with certain "post-conflict peacebuilding operations" that are part of a United Nations (U.N.) peacekeeping operation.59 Thus, a non-U.N. peacekeeping operation, such as the current North Atlantic Treaty Organization (NATO) operation in Kosovo, does not qualify as ODA. For fiscal year (FY) 2001, the U.S. Congress authorized the U.S. Department of Defense to spend up to $ 1.65 billion for incremental costs associated with peacekeeping operations in Kosovo.60 Whether or not such activities are recognized as ODA, the presence of NATO troops have permitted a semblance of normality to return to the region.

ODA levels alone—whether measured in total dollars or by percentage of GNP or GNI—do not necessarily present a precise or complete picture of U.S. support of sustainable development abroad. Nevertheless, ODA data do illustrate trends, and the United States has greatly reduced its ODA disbursements since 1992. ODA data also help identify the extent to which the United States is engaged with the rest of the world, which is examined in further detail in the following section.

U.S. Contributions to the Montreal Protocol Multilateral Fund and the GEF

Contributions to multilateral environmental organizations may constitute ODA. For example, 100% of contributions to the Montreal Protocol Multilateral Fund is recognized as ODA, and 75% of contributions to the GEF is eligible to be counted.61 While contributions to environmental efforts may seem far removed from the strategic objective of fighting terrorism, there is an indirect link. If the United [32 ELR 10689] States wishes to rely on other nations in the war on terrorism, it should abide by its commitments in other international contexts.

Montreal Protocol Multilateral Fund

Agenda 21 observes that "additional financial resources" for developing countries are needed to solve "major environmental problems of global concern."62 The use of ozone-depleting chemicals, which degrade the earth's stratospheric ozone layer, is one such global environmental problem. In contrast to other global challenges, an effective mechanism—the Montreal Protocol's Multilateral Fund—exists to assist developing countries in meeting their obligations to reduce their production and consumption of ozone-depleting substances.63 The multilateral fund's four implementing agencies assist potential recipients with preparing specific project proposals.64 Funds are then disbursed for approved projects that contribute to phasing out ozone-depleting substances.

Initially established on an interim basis, the Montreal Protocol Multilateral Fund was accorded permanent status in 1993.65 The fund's initial three-year budget was $ 160 million66; it has since grown to $ 440 million for 2000-2002.67 The level of payment to the fund depends on a developed country's U.N. assessment.68 The United States therefore has been responsible for providing 25% of the fund's budget.

The United States made timely payments until 1995, when it fell into arrears. By 1996, the United States owed approximately $ 27 million in outstanding contributions.69 The United States soon made up the shortfall, and has no outstanding contributions for the time period of 1991-2000.70 The total agreed contributions for all developed countries for 1991-2000 was almost $ 1.3 billion.71 The United States contributed approximately $ 327 million, or slightly more than 25% of the entire fund.72

The Montreal Protocol Multilateral Fund is a good example of a financial mechanism that is consistent with Agenda 21, the Rio Declaration, and the concept of sustainable development. The threat from ozone-depleting substances has been caused largely by the developed world. Reducing the threat, however, depends on the cooperation of developed and developing countries. The Montreal Protocol recognized that any reductions by developed countries could be offset by increased production and consumption of ozone-depleting substances in developing countries, especially China and India. Accordingly, and consistent with the principle of common but differentiated responsibilities, the Montreal Protocol Multilateral Fund reimburses developing countries for the incremental costs of adherence to the Montreal Protocol's restrictions. The fund was instrumental in encouraging China and India's accession to the treaty regime, and is critical to the transfer of environmentally safe substitutes and technologies to developing countries. By helping to protect the ozone layer, the Montreal Protocol Multilateral Fund assists with sustainable development. This is one area where the United States provided leadership and followed through on its financial commitments.

The GEF

The U.S. experience with GEF provides a stark contrast to its work with the Montreal Protocol Multilateral Fund. Initially established in 1991 as a pilot program, GEF was restructured and made permanent in 1994.73 GEF provides funds to developing countries for specific projects to reduce greenhouse gas emissions and to protect biodiversity, international waters, and the stratospheric ozone layer.74 It is designated as the financial mechanism for the Climate Change Convention and for the Convention on Biological Diversity.75

During the pilot phase, contributing countries pledged approximately $ 1.3 billion.76 In 1994, the first replenishment [32 ELR 10690] of GEF (GEF-1) resulted in additional pledges of approximately $ 2 billion.77 The second replenishment (GEF-2) occurred in 1998, and donors once more pledged approximately $ 2 billion to support environmental projects and promote sustainable development.78 A third replenishment (GEF-3) is currently under negotiation.

The United States satisfied its commitments during the pilot phase through bilateral assistance.79 For GEF-1, the United States agreed to provide $ 430 million, which was to be paid in four annual tranches of $ 107.5 million.80 By FY 1997, however, the United States had contributed a total of $ 190 million, which left it over $ 130 million in arrears.81

The United States followed the same pattern in GEF-2. Once again, the United States pledged $ 430 million, but it has not met its obligations. As of April 2001, when donors were required to have paid at least 75% of their GEF-2 commitments, the United States had paid $ 118.56 million, or only 27.6% of its agreed-upon share.82 Most of the 32 donor countries had contributed at least 50% of their pledges; the U.S. performance was only better than that of Italy, which had paid 25.2%, and Nigeria, which had yet to pay.83

The ramifications of the U.S. failure to pay are much more significant than Italy and Nigeria's recalcitrance. The replenishment resolution gives donor countries the option to order the trustee of GEF to defer committing portions of their contribution when a Contributing Participant, whose contribution represents more than 20% of the total GEF-2 resources,84 —that is, the United States and Japan—has not paid its share. As of April 2001, Japan had paid 75% of its $ 412.6 million pledge.85 Because, however, the United States was in arrears, other countries had the right to put a hold on the funds they had contributed. Indeed, Austria, France, and Germany exercised their right to place a hold on the commitment of their second installment, which totaled over $ 96 million.86 They have since lifted their hold with respect to the second installment, but Austria has requested that commitment of its third installment be deferred in light of U.S. arrears.87

Recommendations

The overriding principle of U.S. international assistance should be that the aid should further its strategic objectives, including fighting terrorism. This is less a recommendation than simply a recognition of reality. To the extent that the aid is a reward for cooperation in the war on terrorism, the link with strategic objectives is clear. When aid is given for sustainable development, the connection is not as direct.

Yet it is in the strategic self-interest of the United States to offer sustainable development assistance. If the assistance is effective, if it helps promote economic development, social well-being, and a healthy environment, it may in the long term offer a more attractive option to young men who might otherwise drift to terrorism to give meaning to an empty life. Such assistance is, in a sense, consistent with Washington's advice to "cultivate peace and harmony with all [nations]."88 Although Washington noted that "religion and morality" call for such a policy, he also suggested that this course of action was in U.S. self-interest: "Who can doubt that in the course of time and things the fruits of such a plan would richly repay any temporary advantages which might be lost by a steady adherence to it?"89 Similarly, if sustainable development aid is effective, who can doubt that the United States will reap benefits from a more stable world and improved environmental conditions?

But sustainable development assistance also can provide strategic benefits in the shorter term, albeit less tangible. By resolving questions concerning its financial commitments to multilateral organizations, the United States sends an important message: it is engaged in global issues90 and it follows through on its international obligations. This is a critical message to convey when the United States is seeking to rely on other nations in the war on terrorism. The steps taken by the United States to clear up existing U.N. arrears are very positive.91 The United States should follow a similar path with respect to its GEF commitments.

The conferees at the World Summit on Sustainable Development in Johannesburg may do well to heed Washington's warning also, recalling that it would be an error to expect "real favors" from the United States and other developed countries. The conferees, if they wish to convince the United States to provide more aid (and in particular more ODA), must make the case that such aid is in the self-interest of the United States. A good start would be declaring that terrorism is inherently destructive of sustainable development. More than mere rhetoric is needed, however.

In the past, a primary focus of ODA has been on the input side: how much money has the United States and other developed countries donated and to which countries? The input [32 ELR 10691] side of the equation remains important, but ODA as percentage of GNI is not the sole indicator of a developed country's commitment to supporting sustainable development abroad. A more complete picture includes tracking actual dollars contributed, OA and other non-ODA aid (such as some peacekeeping operations), and private resource flows.

The conference may wish to consider calling for an expanded definition of ODA to include other activities and projects that encourage sustainable development or that help promote the necessary preconditions for sustainable development to occur. Yet a debate over the proper measurement of developed countries' input may distract the conference from the more important numbers: are ODA and other assistance resulting in tangible benefits in the receiving countries? Is infant mortality decreasing? Are literacy rates rising? Is the rate of AIDS infections decreasing? Is the loss of biological resources slowing? Simply put, is the aid effective? It may be more beneficial to focus on the output end of the aid equation.92

Focusing on output does not mean ignoring input. The level of a developed country's contributions to sustainable development both (ODA and non-ODA) should continue to be monitored and publicized, as the OECD's DAC and the Reality of Aid Project do. The data may help prod recalcitrant developed countries into providing more assistance. But additional assistance may not be forthcoming unless it can be demonstrated that the aid will be effective. Accordingly, there should also be regular reports on how the aid is used in developing countries. Is the developing country using the assistance wisely? Is the assistance achieving the desired results? While a methodology for such a report will necessarily be more subjective than the simple measurement of input, it may prove to be more valuable. The information should help inform and persuade the public and policymakers about the benefits of international assistance.

Such information is critical because, when making decisions regarding the allocation of aid, the United States must ask the question: how does this assistance further its strategic goals? To proceed otherwise would lead us to the error about which Washington warned.

1. WILLIAM SAFIRE, LEND ME YOUR EARS: GREAT SPEECHES IN HISTORY 393 (1997) (President George Washington delivers his farewell speech).

2. Pamela Constable, Pakistan Hopes Aid Can Spark Economy, WASH. POST, Sept. 27, 2001, at A16 (reporting that U.S. Ambassador Wendy Chamberlin signed an agreement "to reschedule payments for $ 379 million of Pakistan's $ 34.6 billion foreign debt"). See also Steven Mufson, U.S. Adds Economic Weapons to Arsenal: Trade, Loans, and Aid Would Go to Allies in Terrorism Fight; Sanctions to Foes, WASH. POST, Sept. 18, 2001, at A9.

3. E.g., Eric Pianin, War Effort Pushes "Green" Issues Aside; Environmental Groups Rethink Agenda as Nation Focuses on Anti-Terror Fight, WASH. POST, Oct. 21, 2001, at A5 (reporting that U.S. Environmental Protection Agency officials have withdrawn long-running objections concerning the U.S. Air Force's venting of ozone-depleting gas from fighter jets).

4. See infra notes 49-50 and accompanying text.

5. A significant exception to this principle may be humanitarian assistance; however, even humanitarian assistance often has strategic value. See infra note 39 and accompanying text.

6. See generally U.S. Department of State, Environmental Diplomacy, at http://www.state.gov/www/global/oes/earth.html (last visited Jan. 28, 2002). See also DEVELOPMENT ASSISTANCE COMMITTEE (DAC), SHAPING THE 21ST CENTURY: THE CONTRIBUTION OF DEVELOPMENT COOPERATION 6 (1996) ("The basic notion of security is being redefined, placing much more weight on the needs and concerns of human beings and the quality of their environment. Everyone is made less secure by the poverty and misery that exist in this world.") [hereinafter DAC, SHAPING THE 21ST CENTURY].

7. Cf. Rio Declaration on Environment and Development, U.N. Conference on Environment and Development (UNCED), U.N. Doc. A/CONF.151/5/Rev. 1, 31 I.L.M. 874 (1992), princ. 24 (Principle 24 states: "Warfare is inherently destructive of sustainable development.").

8. John Dernbach, Sustainable Development: Now More Than Ever, 32 ELR 10003 (Jan. 2002).

9. ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT (OECD), GEOGRAPHICAL DISTRIBUTION OF FINANCIAL FLOWS TO AID RECIPIENTS 1995-1999, at 314 (2001) [hereinafter DAC, GEOGRAPHICAL DISTRIBUTION].

10. Id.

11. Id. at 9.

12. See, e.g., Jeffrey L. Dunoff, From Green to Global: Toward the Transformation of International Environmental Law, 19 HARV. ENVTL. L. REV. 241, 284 (1995) (discussing "the standard environmentalist criticism of the [World] Bank, namely its financing of ecological and economic disaster in the developing world, by promoting development projects that have denuded forests, depleted soils, and increased dependence on unsustainable energy sources") (internal quotation marks omitted).

13. M.A. Thomas, Getting Debt Relief Right, FOREIGN AFF., Sept./Oct. 2001, at 38 ("Although total losses due to high-level corruption are impossible to estimate, individual cases indicate losses in the millions and billions of dollars.").

14. An important question is also whether the assistance represents additional funds used for economic and social development or whether the assistance merely allows the recipient government to spend money in other sectors. See id. ("The only way to determine whether earmarked funds add to or substitute for government spending is to track all poverty-related spending and social-service provision. But . . . none of the HIPCs [heavily indebted poor countries] currently receiving debt relief are capable of doing so."). See also Ian Fisher, Can International Relief Do More Good Than Harm?, N.Y. TIMES MAG., Feb. 11, 2001, at 76 ("Having foreigners come in and feed the hungry can free armies or rebel groups to buy more weapons.").

15. DAC, SHAPING THE 21ST CENTURY, supra note 6, at 1 (observing that "civil conflict" has "set back development for generations" in some countries).

16. OECD, DAC STATISTICAL REPORTING DIRECTIVES 19-20 (2000) [hereinafter DAC, REPORTING DIRECTIVES]. See infra notes 60-61 and accompanying text.

17. Alan S. Miller, Environmental Policy in the New World Economy, 3 WIDENER L. SYMP. J. 287, 291 (1998).

18. A number of commentators excuse U.S. diminishing ODA by pointing to the offsetting increase in private flows to developing countries. See, e.g., CONGRESSIONAL BUDGET OFFICE, THE ROLE OF FOREIGN AID IN DEVELOPMENT 8 (1997) (noting that critics of foreign aid suggest "that development should be left to market forces" because the "private sector in developing countries would be much more efficient in promoting economic growth than development specialists"). When one considers total resource flows—official and private—U.S. performance has actually improved since the Rio Conference. In 1988-1989, total resource flows from the United States was $ 16.9 billion or .34% of its GNP. 2 OECD, DAC, DEVELOPMENT COOPERATION 2000 REPORT 182-83 (2001) [hereinafter DAC, 2000 REPORT]. In contrast, during the four-year period of 1996-1999, the average annual flow more than tripled to $ 57.3 billion or .69% of U.S. GNP. Id. It is a mistake, however, to believe that private resource flows will naturally lead to sustainable development. See infra note 26.

19. William McCormick, U.S. Resource Flows to Developing Countries and Multilateral Organizations, 1993-1997, SURVEY OF CURRENT BUSINESS 12, 12 (1999).

20. Id. In 1998 and 1999, total resource flows dipped to 0.55 and 0.54% of GNP. See DAC, 2000 REPORT, supra note 18, at 182-83.

21. McCormick, supra note 19, at 12.

22. Id.

23. See HILARY F. FRENCH, INVESTING IN THE FUTURE: HARNESSING PRIVATE CAPITAL FLOWS FOR ENVIRONMENTALLY SUSTAINABLE DEVELOPMENT 6 (Worldwatch Institute 1998) (characterizing the environmental implications of private capital flows as "enormous").

24. Alan S. Miller, The Global Environment Facility and the Search for Financial Strategies to Foster Sustainable Development, 24 VT. L. REV. 1229, 1231 (2000) (observing that foreign direct investment in some developing countries is "concentrated in resource-extractive industries"); see generally FRENCH, supra note 23.

25. See ALBERTO ALESINA & DAVID DOLLAR, WHO GIVES FOREIGN AID TO WHOM AND WHY? 2 (National Bureau of Economic Research, Inc., Working Paper No. 6612, 1998) (concluding that "while foreign aid responds to 'political' openness (democratization), foreign direct investment responds more to 'economic' openness (improvement in policy management, trade liberalization, better protection of property rights)").

26. Miller, supra note 24, at 1231-32 (noting that more than 80% of private investment goes to approximately 20 countries). In this regard, it is instructive to compare private resource flows from DAC countries to Africa and South America. From 1997-1999, private flows from DAC countries to South America averaged over $ 46 billion annually; during the same period, Africa received less than $ 5 billion annually. DAC, GEOGRAPHICAL DISTRIBUTION, supra note 9, at 82-83. The disparities in private flows exist even within Africa. In 1999, if one removes from consideration South Africa ($ 1.28 billion), Angola ($ 958.2 million), and Somalia ($ 917.3 million), Africa experienced a net loss in private resource flows. See id.

27. UNCED, Agenda 21, U.N. Doc. A/CONF.151.26 (1992) [hereinafter UNCED, Agenda 21].

28. Id. P33.20.

29. Chapter 33 is entitled "Financial Resources and Mechanisms." It opens by referring to the December 1989 U.N. General Assembly resolution that called for the UNCED to identify "new and additional financial resources." Id. P33.1. These resources are to be provided "particularly to developing countries [ [ for environmentally sound management programmes and projects in accordance with national development objectives." Id. Similarly, the conference was expected to find "additional financial resources for measures directed towards solving major environmental problems of global concern." Id. These financial resources are also to be provided "in particular" to developing countries where implementing "such measures would entail a special or abnormal burden." Id. The introduction recognizes that, if developing countries are to implement Agenda 21's blueprint for "integrating environmental considerations into an accelerated development process," the international community must substantially increase its financial assistance. Id. P33.2.

The provision of such assistance, Chapter 33 reasons, is in the common interest of all nations, developing and developed, and generations present and future. Id. P33.3. Chapter 33 exhorts that "special efforts" will be required to resolve environmental issues, highlighting global climate change and biodiversity as among the most pressing concerns. Id. Although the need for "enhanced and predictable levels of funding" and "substantially new and additional financial resources" is emphasized, e.g., id. P33.9, Chapter 33 also observes that private sector investment is necessary for economic development. Id. P33.15. Accordingly, actions that support free trade and the removal of market barriers are noted in a positive light. Id. P33.6.

Chapter 33 acknowledges that funding for Agenda 21's activities should come from both a country's public and private sectors. Id. P33.15. It observes, however, that "ODA is a main source of external funding" for developing countries, and that if these countries are to achieve Agenda 21's objectives, developed countries must contribute more. Id.

30. Id. P33.20.

31. Id. P33.15. In 1958, the World Council of Churches recommended that developed countries contribute 1% of their national incomes to international assistance. See Ambassador Emilio J. Cardenas, Minister Carlos Sersale di Cerisaro & Secretary Oscar Avalle, The Changing Aid Environment: Perspectives on the Official Development Assistance Debate, 2 ILSA J. INT'L & COMP. L. 189, 189-90 (1995). The U.N. General Assembly endorsed the 1% target by resolutions in 1960 and 1970. Id. at 190. In December 1975, the U.N. General Assembly modified the goal, calling on developed countries to provide .07% of their respective GNPs as ODA. Id.

32. UNCED, Agenda 21, supra note 27, P33.15. Chapter 33 then discusses different mechanisms for the provision of financial resources. The mechanisms include contributions to multilateral banks and funds (such as GEF); international organizations active in Agenda 21's implementation; U.N. Development Program (UNDP) and U.N. Environment Program (UNEP); bilateral assistance programs; debt relief; and nongovernmental organizations. Id. P33.16. The role of foreign direct investment and technologies transfers is also encouraged. Id. P33.17.

33. See John Dernbach & the Widener University Law School Seminar on Law and Sustainability, U.S. Adherence to Its Agenda 21 Commitments: A Five-Year Review, 27 ELR 10504, 10506 (Oct. 1997) (citing U.S. Statement for the Record on the UNCED Agreements, U.S. Dep't of State Dispatch Supplement, July 1992, at 35).

34. Rio Declaration on Environment and Development, UNCED, U.N. Doc. A/CONF.151/5/Rev. 1, 31 I.L.M. 874 (1992).

35. One should note, however, that the pliable language of the Rio Declaration "allowed all parties to read into the agreement what they wanted to see." Barbara J. Bramble, Financial Resources for the Transition to Sustainable Development, in EARTH SUMMIT 2002 134, 138 (Felix Dodds ed., 2001).

36. See Royal C. Gardner, Exporting American Values: Tenth Amendment Principles and International Environmental Assistance, 22 HARV. ENVTL. L. REV. 1 (1998).

37. New York v. United States, 505 U.S. 144, 169, 22 ELR 21082, 21088 (1992).

38. The principle of common but differentiated responsibilities does not simply impose obligations on developed countries. Developing countries also have obligations. In this context, the responsibilities would include the duty to use the assistance wisely and effectively. Cf. DAC, SHAPING THE 21ST CENTURY, supra note 6, at 14-15 (listing responsibilities of developing countries).

39. Emphasizing that the primary motive for ODA should be "fundamentally humanitarian," the OECD has stated:

Support for development is a compassionate response to the extreme poverty and human suffering that still afflict one-fifth of the world's population. The people who live in extreme poverty, for the most part, lack access to clean water and adequate health facilities; many do not receive sufficient nourishment to live a productive life; the majority do not possess basic literacy or numeracy skills. Their deprivation is unneccesary and its continuation is intolerable. The moral imperative for support is self-evident.

Id. at 6 (internal footnote omitted).

40. David F. Gordon, Overseas Development Council, Rethinking Foreign Assistance, Testimony Before the House International Relations Committee (Feb. 26, 1997), at http://www.odc.org/commentary/dghse2.html.

41. E.g., Robert D. Kaplan, The Coming Anarchy, ATLANTIC MONTHLY, Feb. 1994, at 44 (describing threats to the viability of West African states).

42. As President George W. Bush explained in his address to the United Nations: "Following September 11th, these pledges [to encourage development, expand trade, invest in education, and combat AIDS] are even more important. In our struggle against hateful groups that exploit poverty and despair, we must offer an alternative of opportunity and hope." Transcript of President Bush's Remarks to United Nations General Assembly (Nov. 10, 2001), available at http//www.usnewswire.com/topnews/Current_Releases/1110-105.html.

43. Of course, it can be very difficult to quantify the effectiveness of international assistance. See ANNE O. KRUEGER, ECONOMIC POLICIES AT CROSS-PURPOSES 51 (1993). See also Robert O. Keohane, Analyzing the Effectiveness of International Environmental Institutions, in INSTITUTIONS FOR ENVIRONMENTAL AID 3, 14 (Robert O. Keohane & Marc A. Levy eds., 1996) (noting that "'effectiveness' is a difficult concept that can have many meanings" and suggesting that "effectiveness depends on choosing a significant problem, defining its scope in a manageable way, proposing solutions, devising institutional arrangements to implement the solutions, and actually implementing the solutions that have been agreed to").

44. See USAID, ANNUAL REPORT ON PROGRAM PERFORMANCE 1994, at 111 (1995).

45. Id.

46. THE REALITY OF AID 2000, at 81-82 (Judith Randel et al. eds., 2000). See also THOMAS CAROTHERS, AIDING DEMOCRACY ABROAD: THE LEARNING CURVE (1999).

47. Gordon, supra note 40.

48. See McCormick, supra note 19, at 13; DAC, 2000 REPORT, supra note 18, at 184-85.

49. See DAC, 2000 REPORT, supra note 18, at 192.

50. See id.

51. See id. Although Japan's ODA has decreased on an annual average basis from 1993-1999, Japan dramatically increased its ODA in actual dollars in 1999 to $ 15.3 billion from $ 10.6 billion in 1998. Id. at 207.

52. The DAC is introducing a new accounting system, in which GNP will be replaced by GNI. Because "GNI has generally been higher than GNP, ODA/GNI ratios are slightly lower than previously reported ODA/GNP ratios." OECD, ODA Steady in 2000; Other Flows Decline (Table 1: Net Official Development Assistance Flows From DAC Members n.1), at http://webnetl.oecd.org/oecd/pages/home/displaygeneral/0,3380,EN-document-notheme-2-no-12-22966-0,FF.html (last visited Feb. 7, 2002).

53. See Jan Nijman, United States Foreign Aid: Crisis? What Crisis?, in THE GLOBAL CRISIS IN FOREIGN AID 29 (Richard Grant & Jan Nijman eds., 1998); William M. LeoGrande, Foreign Aid to Central America: Is the Era of Aid Over?, in id. at 105-06.

54. McCormick, supra note 19, at 12.

55. Id.

56. DAC, GEOGRAPHICAL DISTRIBUTION, supra note 9, at 314.

57. Accordingly, U.S. assistance to Russia such as the Cooperative Threat Reduction Program (also known as Nunn-Lugar), a primary purpose of which is to facilitate the dismantlement of the former Soviet Union's nuclear weapon infrastructure and provide for the safe and secure storage of nuclear weapons and nuclear material, does not quality as ODA. Nevertheless, such assistance does further the goal of sustainable development. See DAC, SHAPING THE 21ST CENTURY, supra note 6, at 6 (identifying "nuclear non-proliferation" as one of a "host of global issues" that must be managed under sustainable development). For a discussion of the history of the Cooperative Threat Reduction Program, see Jack Beard, Countering the Threat Posed by Non-State Actors in the Proliferation of Weapons of Mass Destruction, 92 AM. SOC'Y INT'L L. PROC. 173 (1998); see also Lakshman D. Guruswamy & Jason B. Aamodt, Nuclear Arms Control: The Environmental Dimension, 10 COLO. J. INT'L ENVTL. L. & POL'Y 267 (1999).

58. Compare DAC, GEOGRAPHICAL DISTRIBUTION, supra note 9, at 64-65 (U.S. disbursements) with id. at 44-45 (Japanese disbursements).

59. DAC, REPORTING DIRECTIVES, supra note 16, at 19-20. The activities for which costs may be counted as ODA are

human rights; election monitoring; rehabilitation assistance to demobilised soldiers; rehabilitation of basic national infrastructure; monitoring or retraining of civil administrators and police forces; training in customs and border control procedures; advice or training in fiscal or macroeconomic stabilization policy; repatriation and demobilization of armed factions and disposal of their weapons; and explosive mine removal.

Id. at 20.

The restrictive definition may have practical ramifications. A Dutch Foreign Ministry official has suggested that "western support for peacekeeping operations in Africa is hindered by the fact that money channeled to peacekeeping operations is not eligible to be budgeted as [ODA]." A. Hamburger, Don't Let Pessimism Prevail, at http://www.euconflict.org/euconflict/publicat/repafr/page4.html (last visited Jan. 28, 2002).

60. Pub. L. No. 106-398, § 1005, 114 Stat. 1654 (2000).

61. DAC, REPORTING DIRECTIVES, supra note 16, at 22-23.

62. UNCED, Agenda 21, supra note 27, P33.1.

63. See Montreal Protocol Parties: Adjustments and Amendments to the Montreal Protocol on Substances That Deplete the Ozone Layer, June 29, 1990, 30 I.L.M. 537 (entered into force Mar. 7, 1991).

64. The Secretariat of the Multilateral Fund for the Implementation of the Montreal Protocol, General Information, at http://www.unmfs.org/general.htm (last visited Jan. 28, 2002) [hereinafter Multilateral Fund General Information]. The fund's implementing agencies are the UNDP, UNEP, the U.N. Industrial Development Organization, and the World Bank. Id.

65. See THE MULTILATERAL FUND FOR THE IMPLEMENTATION OF THE MONTREAL PROTOCOL, WORKING TOGETHER TO PROTECT THE OZONE LAYER 3 (undated).

66. Id. (noting that this was later increased to $ 240 million for this time period).

67. Multilateral Fund General Information, supra note 64.

68. Id.

69. Gardner, supra note 36, at 40.

70. Trust Fund for the Multilateral Fund for the Implementation of the Montreal Protocol—Status of the Fund, UNEP/OzL.Pro/ExCom/33/32 Annex 1, at 5 [hereinafter Trust Fund Status]. Part of the U.S. contribution consists of $ 20.4 million in promissory notes. Id. The Executive Committee of the Montreal Protocol Multilateral Fund has formally "decided that promissory notes do constitute commitable resources and that the deposit of a promissory note would be considered to be payment of a country's contribution to the Fund." THE MULTILATERAL FUND SECRETARIAT, POLICIES, PROCEDURES, GUIDELINES, AND CRITERIA (AS AT MARCH 2001) 62 (2001). The promissory notes are "encashed on a fixed schedule," although the fund retains the right to demand payment on an accelerated schedule. Id. The use of promissory notes, with its deferred payments, provides a "potential for considerable interest savings" for the United States. Lawrence Dyckman, Associate Director-Environmental Protection Issues, U.S. General Accounting Office, Testimony Before the House Subcommittee on Health and Environment, Committee on Commerce (July 30, 1997) (estimating that the United States could "save between $ 2 million and $ 3 million on each of its annual contributions to the Multilateral Fund by using promissory notes").

71. Trust Fund Status, supra note 70, at 6.

72. Id.

73. See David Fairman, The Global Environment Facility: Haunted by the Shadow of the Future, in INSTITUTIONS FOR ENVIRONMENTAL AID 61-69 (Robert O. Keohane & Marc A. Levy eds., 1996).

74. See What Is the Global Environment Facility?, at gefweb.org/What_is_the_GEF/what_is_the_gef.html (last visited Aug. 28, 2001).

The GEF has a complementary relationship with the Montreal Protocol Multilateral Fund for purposes of ozone depletion. Certain countries, primarily in Eastern and Central Europe and the former Soviet Union, are ineligible for assistance from the Montreal Protocol Multilateral Fund; however, they are eligible to receive GEF assistance for projects that reduce production or consumption of ozone-depleting substances.

Gardner, supra note 36, at 42.

75. GEF, Relations With Conventions, GEF/C.9/7 (Mar. 27, 1997).

76. Donald M. Goldberg, The Montreal Protocol Multilateral Fund: A Model for the Framework Convention on Climate Change, Int'l Env't Daily (BNA), Apr. 15, 1993, at 304.

77. See GEF, Status & Commitments and Pledges to GEF Trust Fund, GEF/C.12/Inf.3, at 1 (Oct. 1, 1998).

78. See id.

79. See Ian A. Bowles & Cyril F. Kormos, Environmental Reform at the World Bank: The Role of the U.S. Congress, 35 VA. J. INT'L L. 777, 801 (1995).

80. See GEF, Instrument for the Establishment of the Restructured Global Environment Facility 26-27 (1994), 33 I.L.M. 1278, 1301 (Annex C, attach. 1.).

81. Gardner, supra note 36, at 44.

82. GEF, GEF-2 Pledges and Funding Situation, GEF/R.2/4/Rev. 1, at B1 (May 4, 2001).

83. Id.

84. Id. at 2.

85. Id. at B1.

86. Id. at 2.

87. Id. There is one significant difference between the U.S. relationship with the Montreal Protocol Multilateral Fund and its relationship with GEF. The Montreal Protocol Multilateral Fund is the financial mechanism for the Montreal Protocol, to which the United States is a Party; GEF is the financial mechanism for the Convention on Biological Diversity, to which the United States is not yet a Party. GEF is also the financial mechanism for the Climate Change Convention. While the United States is a Party to the Climate Change Convention, it will not become a Party to the current version of the Kyoto Protocol. Nevertheless, GEF supports sustainable development apart from these conventions. The fact that the United States may not be a Party to these conventions is not a compelling justification for its unwillingness to pay. The United States pledged a specific amount of assistance, and it has not satisfied that commitment.

88. SAFIRE, supra note 1, at 391.

89. Id.

90. To be sure, Washington also warned that it would be "unwise to extend" engagements with the foreign world, but in today's interconnected world, it is not an option for the United States to retreat into an isolationist shell.

91. See Bush Implements Plan to Pay U.N. Back Dues, WASH. POST, Oct. 26, 2001, at A28; Daily Press Briefing by the Office of the Spokesman for the Secretary-General (Nov. 12, 2001), at www.un.org/News/briefings/doc/2001/dbll1201.doc.htm (reporting that the United States made a $ 475 million payment to eliminate much of its peacekeeping arrears).

92. The Montreal Protocol Multilateral Fund may offer an instructive model: recipient nations are involved in the preparation of project proposals, and specific projects are then approved and funded. The financing is not block grants or "used simply as bribe to buy the acquiescence of reluctant developing states, without assessing the merit of the uses to which the funding would be put." Elizabeth R. DeSombre & Joanne Kauffman, The Montreal Protocol Multilateral Fund: Partial Success Story, in INSTITUTIONS FOR ENVIRONMENTAL AID 90 (Robert O. Keohane & Marc A. Levy eds., 1996). As Barbara Bramble notes, "progress on reversing the falling ODA contributions is more likely if the specific uses for the funds are clearly spelled out." Bramble, supra note 35, at 145.

32 ELR 10681 | Environmental Law Reporter | copyright © 2002 | All rights reserved